Ex Parte Thompson

153 S.W.3d 416, 2005 Tex. Crim. App. LEXIS 4, 2005 WL 51327

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 2005
• Docket: AP-74820
• Status: Published

Opinions

OPINION

JOHNSON, J.,

delivered the opinion of the Court, joined by

MEYERS, PRICE, WOMACK, HOLCOMB, and COCHRAN, JJ.

This is a post-conviction application for a writ of habeas corpus filed pursuant to Tex.Code CRIM. P. Article 11.07. In 1991, a jury convicted applicant of aggravated sexual assault of a child (Tex. Pen.Code § 22.021(a)(1)(B)) and assessed punishment at thirty years’ imprisonment. The conviction was affirmed on appeal. Thompson v. State, No. 05-91-01200-CR, 1993 WL 407278 (Tex.App.-Dallas, October 14, 1993). In this application applicant contends that newly discovered evidence shows that he is actually innocent. Following an evidentiary hearing, the trial court entered findings of fact and conclusions of law indicating that applicant is entitled to relief.

In Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996), this Court held that bare claims of actual innocence are cognizable in a habeas proceeding, even in non-capital cases. Ex parte Elizondo, 947 S.W.2d at 205. To merit relief, the applicant bears the burden of showing that the newly discovered evidence unquestionably establishes his or her innocence. Id. at 209. The court reviewing the habeas claim must examine the new evidence in light of the evidence presented at trial:

Because, in evaluating a habeas claim that newly discovered or available evidence proves the applicant to be innocent of the crime for which he was convicted, our task is to assess the probable impact of the newly available evidence upon the persuasiveness of the State’s case as a whole, we must necessarily weigh such exculpatory evidence against the evidence of guilt adduced at trial.

Id. at 206. In order to grant relief, the reviewing court must believe that no rational juror would have convicted the applicant in light of the newly discovered evidence. Id. at 207.

In this case, the habeas court received evidence and testimony at the writ hearing. The court weighed the new evidence and testimony against the evidence adduced at applicant’s trial, determined that applicant had met the burden of showing his actual innocence, and recommended that this Court grant relief. This Court is not bound by the findings, conclusions or recommendations of a trial court. However, because the habeas court is in a better position to make determinations of credibility¹ in this case, we should defer to those findings if they are supported by the record. Ex parte Bates, 640 S.W.2d 894, 898 (Tex.Crim.App.1982); Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Crim.App.1977). In this case, the findings of the habeas court are supported by the record.

Applicant was convicted of sexually assaulting his five-year-old daughter, who was eight years old at the time of the trial. The evidence presented against applicant at trial consisted of the following: the testimony of the complainant, the testimony of the complainant’s mother, the complainant’s torn dress (which the state alleged was tom by applicant during the assault), the testimony of the arresting police officer, and the testimony of the physician who examined the complainant.

The physician testified that the results of the complainant’s examination were completely normal. However, he also stated that the lack of physical evidence of sexual abuse was “consistent with digital penetration.”

The defense presented only the testimony of applicant’s two sisters, who were also the complainant’s aunts.

Applicant did not testify during the guilt/innocence phase of trial, but he did take the stand during the punishment phase. During testimony about whether applicant would be able to adhere to conditions of probation, applicant responded to a question by his defense attorney regarding his feelings about the offense:

Q. Steve, I want you to look at this jury and tell them whether or not you’re sorry that this happened.

A. Yes, I’m truly sorry about this happening and as long as I live I will never let it happen again.

That statement was followed by an exchange with the prosecutor on cross-examination:

Q. You just told this jury that you were truly sorry for what happened, what you did to [C.T.], didn’t you?

A. Yes, that’s correct.

Q. And yet you just sat up there and said you have no love in your heart for [C.T.], didn’t want to establish any sort of relationship with her and yet you were the one who victimized [C.T.], weren’t you?

A. If I did have anything to do with my daughter, they would come back and say—

Q. That’s not what I asked you, Mr. Thompson. You were the one who victimized [C.T.], your five-year-old daughter at the time?

A. I want to plead the Fifth on that. THE COURT: Answer the question.

THE WITNESS: Could she repeat it, please?

Q. You were the one who victimized your daughter when she was five years old and you just sat here and told the jury that you were truly sorry for what happened?

A. Yes.

Q. And yet you’re holding her responsible or at fault and don’t want to have any sort of relationship with her as a result of what happened, what you created, a problem you created?

A. I just don’t want to have — I don’t— I just don’t—

Q. Is that because you don’t trust yourself around her?

A. No. I just, you know — I don’t want to have anything to do with her, no, ma’am. I don’t—

Q. It’s her fault that this happened, isn’t it?

A. No, no.

Q. So now you’re going to take responsibility for what happened? Are you going to take responsibility for what happened, Mr. Thompson?

A. Yes, yes.

At the habeas hearing, various witnesses described the ongoing custody dispute between applicant and his ex-wife at the time the accusations were made against him. Applicant presented the affidavit and testimony of the complainant herself, now 20 years old. She testified that the sexual abuse never happened, but that her mother had pressured her into making the allegations against her father. According to the complainant, when she was five years old, her mother repeatedly asked her whether her father had done specific things to her. When she replied that her father had not done anything, her mother became angry and would not allow the complainant to play or go anywhere until they had talked about it. Eventually, the complainant succumbed to the pressure and “admitted” that applicant had done the things described by her mother. The complainant also testified that she was afraid of her mother, and applicant presented evidence of specific episodes of physical abuse of complainant by her mother over the years since applicant’s trial.

The complainant’s mother testified at the habeas hearing and admitted to several acts of physical abuse against the complainant, although she appeared to minimize their significance. She also admitted to having doubts about whether applicant had committed the acts for which he was convicted. However, she denied that she and applicant had been involved in • any kind of custody dispute at the time of the accusations. She also vehemently denied having pressured the complainant into making the allegations. As she had at applicant’s trial, she testified that her suspicions were aroused when the complainant came home from a visit with her father with a torn dress. She also testified that her daughter had complained of irritation of her genitals, and painful urination. She stated that she noticed redness in the complainant’s genital area when she bathed her. However, she also admitted that she had raised the subject of sexual abuse with C.T. before the torn-dress incident. At the habeas hearing, the complainant’s mother admitted that the complainant had told her that the dress was torn on the bus after church, but that she did not believe the complainant’s explanation. Applicant presented the testimony of the church bus driver, who testified that she had witnessed C.T. falling on the bus and tearing her dress and that applicant had nothing to do with the dress being torn.

Applicant testified at the habeas hearing and again denied that he had ever had any kind of sexual contact with his daughter. He testified that his retained attorney had advised him to tell the jury during the punishment phase that he was Sony for what he had done. According to applicant, his attorney had indicated that he would receive a more lenient sentence if he admitted his guilt at punishment, and he had simply followed his attorney’s advice.² He admitted that his attorney had not instructed him to “plead the Fifth.”

Finally, applicant presented the testimony of Lynne Corsi, an attorney and licensed Master Social Worker who had worked as an assistant district attorney prosecuting cases of child abuse and neglect and who had founded the Dallas Children’s Advocacy Center. Ms. Corsi testified as an expert on interviewing techniques and recantations in child sexual-abuse cases. She offered her opinion that the complainant’s recantation in this case was valid. She explained the bases for her opinion in detail at the hearing and indicated that her conclusion was reached after a thorough review of the transcript and record of applicant’s trial, the affidavit and testimony of the complainant, a three-hour interview with the complainant, and the testimony at the habeas hearing.

The habeas court filed findings of fact and conclusions of law, recommending that applicant’s conviction be set aside:

In making this recommendation that relief be granted, the Court has evaluated this newly discovered evidence in conjunction with an assessment of all the evidence adduced at trial and concluded that this newly discovered evidence has the credibility and strength to cause a verdict of not guilty.

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The Court finds that Applicant’s ground for relief should be granted and the conviction set aside under authority of Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App.1996), in that Applicant has shown by clear and convincing evidence that no reasonable juror would convict him in light of the newly discovered evidence of actual innocence presented at the evidentiary hearing on Applicant’s writ application.

It is clear that the habeas court performed the proper analysis of applicant’s claim under Elizondo, weighing the newly discovered evidence against the evidence adduced at his trial and determining whether any reasonable juror would convict him in light of the new evidence.

We find that the court’s findings are supported by the record. The complainant’s new affidavit and testimony explains how she was intimidated and manipulated into making the accusations against her father. Her testimony is corroborated in part by the church bus driver’s testimony about the torn dress that was put into evidence at applicant’s original trial. The complainant’s mother’s testimony that she did not believe her daughter’s original explanation for the torn dress, but chose to seek an explanation that would confirm her suspicions about applicant supports the complainant’s testimony about how rest of the “outcry” came about. Presented with this evidence, in conjunction with the “completely normal” results of the medical examination, and the sworn testimony of the complainant that the events in question never happened at all, the habeas court’s finding that no reasonable juror could have found applicant guilty is supported by the record. Without the finding of guilt, applicant would not have been put in the position, during the punishment phase of the trial, of having to apologize for an offense he did not commit, nor would he have felt the need to “plead the Fifth” in order to avoid perjuring himself on the witness stand.

Because we find that the habeas court reviewed all the evidence and made findings based on a proper analysis under Ex parte Elizondo, and because we believe that those findings are supported by the record, we grant relief. The judgment in cause number W88-67867-U from the 291st Judicial District Court of Dallas County is set aside, and applicant is remanded to answer the charges against him.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice, institutional and pardons and paroles divisions.

COCHRAN, J., filed a concurring opinion in which HOLCOMB, J., joined.

HERVEY, J., filed a dissenting opinion in which KELLER, PJ., and KEASLER, J., joined.

1 . We defer to the trial court’s findings of fact even when those findings are based on affidavits rather than live testimony. Manzi v. State, 88 S.W.3d 240 (Tex.Crim.App.2002).

2 . The record reflects a question about whether applicant’s trial attorney was licensed to practice law at the time of applicant's trial. The state bar reports that applicant’s trial counsel was actively suspended from 11/01/1989 until 05/01/1991 (applicant’s trial began on 08/12/1991). The State Bar also reports that, on 10/05/1992, counsel "resigned in lieu of disciplinary action.” The court of appeals rejected applicant's argument that this rendered his trial counsel ineffective. The court of appeals was correct in holding that an attorney’s suspension from the practice of law is not always a per se violation of a defendant’s right to counsel. However, in this case it lends support to applicant’s claim that his attorney gave him questionable legal advice.